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  Justices Weigh How Far to Take Sentencing
Posted by FoM on March 26, 2002 at 08:49:53 PT
By Linda Greenhouse 
Source: New York Times  

justice The Supreme Court unleashed a potential revolution in criminal sentencing two years ago when it ruled that only the jury, and not a judge, could find a defendant eligible for a sentence above the range the legislature had specified for a crime.

The decision, Apprendi v. New Jersey, not only invalidated New Jersey's hate-crime law but also called into question the basic sentencing system the federal government and many states use, in which the jury determines guilt but judges make the crucial factual findings — the quantity of drugs, for example — that determine the sentence.

Now the justices have to decide what happens next. The proceeding in the courtroom this morning was labeled an argument, and technically it was. But in contrast to the typical argument, an often dizzying hour in which the justices interrupt each other as often as they hurl questions at the lawyers, this hour more resembled a high-level seminar in which the justices and the lawyers were engaged with utmost seriousness in figuring out what the Apprendi revolution meant and how far it would go.

The session was as riveting as it was unusual, with the justices treating the lawyers as essential partners in the common enterprise of translating theory into practice.

At issue was a seven-year federal sentence a pawnbroker in Albemarle, N.C., received for "brandishing" a gun while he sold four ounces of marijuana to undercover officers. Carrying a gun during a drug transaction violates a federal law, Section 924(c), and yields a sentence of five years to life in prison.

"Brandishing" a gun, as opposed to simply carrying one, brings a mandatory minimum sentence of seven years.

The federal indictment charged William J. Harris only with carrying a gun, a 9-millimeter handgun that he wore, unconcealed, in a holster. The finding that he had brandished the weapon was made by the judge, after the jury found Mr. Harris guilty of the underlying offense.

On appeal to the United States Court of Appeals for the Fourth Circuit, in Richmond, Va., Mr. Harris argued that the judge's role violated the rule of the Apprendi decision. But the Fourth Circuit, along with every other federal appeals court to consider the issue, held that because the maximum sentence was life in prison, the seven-year minimum was obviously within the statutory range and did not violate the Apprendi principle.

His Supreme Court appeal, Harris v. United States, No. 00-10666, therefore raises the important question that the Apprendi decision left hanging: if a judicial finding cannot be allowed to pierce the sentencing ceiling, can it logically be permitted to raise the sentencing floor, through the imposition of a mandatory minimum sentence?

Ordinarily, the Supreme Court would not even agree to hear a case in which all the lower courts were in agreement, particularly on the government's side. Simply by taking this case, and two other Apprendi-related cases that it will hear next month, the court was sending a signal on the importance of the issue.

Mr. Harris's lawyer, William C. Ingram, a federal public defender from Greensboro, N.C., told the court that the logic was inescapable.

"Mandatory minimums add additional deprivations of liberty" based on facts "that should be found by a jury beyond a reasonable doubt," Mr. Ingram said. "The constitutional underpinning of Apprendi was that any fact that increases the sentencing range" had to be found by the jury, whether it raised the ceiling or the floor, he added.

Under the New Jersey hate-crime law that the Apprendi decision invalidated, the jury determined guilt of the basic offense and the judge then decided whether the defendant should receive an enhanced sentence based on a finding that the crime was motivated by bias.

The Supreme Court held that as a matter both of constitutional due process and of the right to trial by jury, the element that converted an ordinary crime into a hate crime had to be charged in the indictment and proven to a jury beyond a reasonable doubt.

Representing the government, Deputy Solicitor General Michael R. Dreeben conceded that it was "obvious" that within the Apprendi decision "there were seeds of a more fundamental change." But Mr. Dreeben said the court should not feel compelled by logic to extend it to mandatory minimum sentences.

While the focus of the Apprendi decision was on the role of the jury, Mr. Dreeben said, "mandatory minimums take away judicial discretion, not jury discretion" by limiting the judge's ability to give a lower sentence.

He continued: "That is not an interest that was at stake in Apprendi. Defendants have never been able to rely on not getting a stiffer sentence within the maximum, and we believe the court should adhere to that tradition today."

Apprendi v. New Jersey was a 5-to-4 decision that fractured the court's usual ideological alliances: Justice John Paul Stevens wrote the majority opinion, joined by Justices Antonin Scalia, David H. Souter, Clarence Thomas and Ruth Bader Ginsburg. The dissenters were Justices Sandra Day O'Connor, Stephen G. Breyer and Anthony M. Kennedy, along with Chief Justice William H. Rehnquist.

The dissenters warned that the decision would have unknown and far-reaching consequences.

So in many ways the most interesting aspect of the argument today was the justices' effort to use the two lawyers as, in effect, expert witnesses to help answer the question of how Apprendi was playing in the real world. To that end, the justices treated the lawyers with unusual respect.

Addressing Mr. Ingram, the public defender, Justice Breyer referred to "the defense bar, of which you are an important part." And the justices let Mr. Dreeben speak for long uninterrupted minutes.

Mr. Dreeben said that while the Apprendi ruling had caused "a considerable amount of judicial chaos," the government had adapted by charging and submitting to the jury those facts that could raise the maximum sentence. If mandatory minimums also fell within Apprendi, the government could handle it, he said, adding that the states, which have more mandatory minimum sentences, would have more difficulty.

But Mr. Dreeben said that in extending Apprendi to mandatory minimums, the court would almost inevitably be raising questions about the federal sentencing guidelines. "If the court rules against the government, we'll be back" to argue that the guidelines, which leave more discretion for judges, should survive, he said.

Mr. Ingram sought to allay the court's concerns over the guidelines and over the prospect of a flood of even more cases.

"But if the Constitution demands it, so be it," he said, adding that mandatory minimum sentences were more important to most defendants than theoretical increases in the maximum sentence.

The court heard another criminal case today, in which the question was whether a federal appeals court had properly ordered a new sentencing hearing for a Tennessee death row inmate whose lawyer had failed to present mitigating evidence or to make a closing argument.

In Bell v. Cone, No. 01-400, Tennessee was appealing on the ground that the United States Court of Appeals for the Sixth Circuit, in Cincinnati, had exceeded its authority in granting a writ of habeas corpus.

Nearly all the justices indicated by their questions that they agreed with the state that the lawyer's performance, while problematic, was not constitutionally deficient.

Complete Title: Justices Weigh How Far to Take a Sentencing Revolution

Source: New York Times (NY)
Author: Linda Greenhouse
Published: March 26, 2002
Copyright: 2002 The New York Times Company
Contact: letters@nytimes.com
Website: http://www.nytimes.com/
Forum: http://forums.nytimes.com/comment/

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Comment #2 posted by dddd on March 26, 2002 at 18:36:24 PT
Stranger Than Strange
...a line in this article stood out,and seemed worth mentioning...." "If the court rules against the government, we'll be back" to argue that the guidelines, which leave more discretion for judges, should survive, he said."
....It really seems strange to think that the "court",could rule against,"the government",,because this means that the "government",is not "by the people,for the people,of the people..."?....it would seem to mean that the "government",has nothing to do with "the people".....and,,,ya know..?.....I'm startin' to think that,"the people",are not the same people that us people and Sheeple thought we were a part of...After all,if you have the government doing a lawsuit against You,,then it's "The People vs. You"...I think it's about time some really cool lawyer stepped up to the task of representing the poor,,in the case of the century,,,,"The Poor vs. The US government" .. The case would involve the collusion between the US government and corporations involving conspiracy to gain favor through payoffs....A cool lawyer could probably find ways to use RICO laws,,,but,,I guess it's kinda obvious that I'm not a lawyer,,because if I was,I would ask about a conflict of interest between the "government",and the Supreme cohort.....dddd


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Comment #1 posted by FoM on March 26, 2002 at 10:55:51 PT
Drug Law Reform In Pols' Hands - Snipped
New York Daily News
Published: March 26, 2002

Will this be the year that lawmakers in Albany finally do something about the Rockefeller drug laws?

For nearly 30 years these laws have needlessly filled the state's prisons with nonviolent drug offenders by mandating harsh terms of 15 years to life for the mere possession or sale of small quantities of drugs.

Nearly 40% of people sent to New York's state prisons last year were convicted on drug charges, while 29% of the 19,000 inmates currently incarcerated for drugs are there only for possession, not for selling them.

A movement has developed the past few years to reform those laws, with even some conservative upstate Republicans calling for change. Hundreds of reform advocates are converging on the state capital today for the annual "Drop the Rock" protest, and the prospects for repeal are better than ever.

Gov. Pataki has his own Felony Drug Law Reform Act before the Republican-controlled state Senate.

His proposal is one of three bills in the Legislature right now, but it has met stiff resistance from lawmakers and community activists in New York City.

Snipped

Complete Article: http://www.nydailynews.com/2002-03-26/News_and_Views/Beyond_the_City/a-145590.asp

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